From Natural Rights to Human Rights: a Cultural War in the Modern Era
2013; Taylor & Francis; Volume: 41; Issue: 2 Linguagem: Inglês
10.1080/09637494.2013.796215
ISSN1465-3974
Autores Tópico(s)Historical and Contemporary Political Dynamics
ResumoAbstract Abstract At first sight the relation between natural rights being derived from natural law on the one hand and human rights on the other seems to be an innocent topic, but if one delves into its historical background the scene appears to be different. This applies even more so when the political background of both types of rights and their concomitant legitimisation is taken into consideration. This article aims at clarifying what political role they played in the struggle between church and state during the aftermath of the French Revolution that greatly influenced the European continent. In short, natural rights represent the endeavour by the Catholic Church to hold on to the unity between throne and altar in the Ancien Régime, whereas human rights refer to constitutional democracy, based on people's sovereignty, by which in principle church and state are separated from each other. The end of the struggle was that the Catholic Church abode by the victory of democracy and replaced natural rights with human rights. However, whereas natural rights disappeared from the ecclesiastical agenda, natural law is still on it. It is used for the legitimisation of prohibitions in the area of sexual relations. According to progressive groups in the Catholic Church this means that the cultural war on natural rights is over, but the battle on natural law continues. Notes 1. In this article I capitalise ‘Church’ when I mean the Catholic Church, but use the lower case when I mean the church more generally, as in phrases such as ‘church–state relations’. 2. Pufendorf, 1701 Pufendorf, S. 1704. De jure naturae et gentium, Oxford: Clarendon Press. [Google Scholar], VII, II, 7–12, with which Burlamaqui (2006 Burlamaqui, J.-J. 2006. The Principles of Natural Law and Politic Law, Indianapolis: Liberty Fund. trans. of Les principes de droit politique [Google Scholar], I, IV, XV), concurs. These three pacts – says Pufendorf (1701 Pufendorf, S. 1704. De jure naturae et gentium, Oxford: Clarendon Press. [Google Scholar], VII, II, 13), citing Seneca – make the state a composite moral person, whose will, intertwined with the pacts, is considered the will of all – a will which Rousseau (1963 Rousseau, J.-J. 1963. Du contrat social, Paris: Union Générale d’Éditions. [Google Scholar], II, III), insists on calling not the will of all as the sum of all individual wills, but the common will. Aristotle (1995 Aristotle. 1995. Politika, in The Complete Works of Aristotle, Princeton: Princeton University Press. [Google Scholar], 1279a 22–1279b10) discerns three forms (monarchy, aristocracy and politeia, i.e. constitution) and three deviations from these (tyranny, oligarchy and democracy). Thomas Aquinas (1955 Aquinas, T. 1955. Summa Theologiae, Madrid: La Editorial Catholica. [Google Scholar], I–II 95, 4), in a free adaptation of Aristotle, identifies the following forms: monarchy, aristocracy, oligarchy, democracy and, as an absolutely corrupt form, tyranny, plus composite forms. 3. Pufendorf (1701 Pufendorf, S. 1704. De jure naturae et gentium, Oxford: Clarendon Press. [Google Scholar], VII, III, 2–3), rejects de Groot's notion that God approves the state ex post facto: like Burlamaqui (2006 Burlamaqui, J.-J. 2006. The Principles of Natural Law and Politic Law, Indianapolis: Liberty Fund. trans. of Les principes de droit politique [Google Scholar], I, VI, VIII–XIII), he sees the relation between God and the state as ex ante. 4. This political notion has medieval credentials: see Kantorowicz (1997 Kantorowicz, E. 1997. The King's Two Bodies: a Study in Mediaeval Political Theology, Princeton: Princeton University Press. [Google Scholar], pp. 193ff., 204ff.). 5. The concept of a perfect society (communitas perfecta) was already used by Thomas Aquinas (1955 Aquinas, T. 1955. Summa Theologiae, Madrid: La Editorial Catholica. [Google Scholar], I–II 90, 3) to indicate the orientation of members and parts of a community to the common good. In the period following the French Revolution it was used as a battle cry against state hegemony vis-à-vis the Catholic Church and against the notion that the Church is simply one among many social institutions (ID, 27). The accent was on the Church as an independent entity with its own means of achieving its goals, especially jurisdiction and administration. See also Torfs (1999 Torfs, R. 1999. ‘The Roman Catholic Church and secular legal culture in the twentieth century. Studia Historiae Ecclesiasticae, 25(1): 1–20. [Google Scholar]). 6. This happened on a large scale in the Netherlands and some other countries, including Germany, where necessary alliances might be formed with non-Catholic organisations (see Van Gestel, 1956 Van Gestel, C. 1956. Kerk en sociale orde (The Church and the Social Order), Leuven: Universitas. [Google Scholar], pp. 264–79). The Netherlands, through the agency of the former Catholic People's Party (KPV), still has forms of public law labour organisation such as the Stichting van de Arbeid. 7. Vattimo (2003 Vattimo, G. 2003. Het woord is geest geworden (Dutch translation of Dopo la Christianita), Kampen: Agora. [Google Scholar], p. 124) points out the relation between the accent on natural law and claims to political power. 8. The Dutch Dominicans are a fine example of ‘devotional Catholicism’ at that time: see Monteiro (2008 Monteiro, M. 2008. Gods predikers: Dominicanen in Nederland (1795–2000) (God's Preachers: Dominicans in the Netherlands (1795–2000)), Hilversum: Verloren. [Google Scholar], pp. 144–52). 9. Both Pius XII and John XXIII concur with a thirteenth- and fourteenth- century tradition, according to which God establishes the empire, but the people choose the emperor. In this choice the title ‘by the grace of God’ functions only as a remote cause (causa remota) (see Kantorowicz, 1997 Kantorowicz, E. 1997. The King's Two Bodies: a Study in Mediaeval Political Theology, Princeton: Princeton University Press. [Google Scholar], pp. 296–97, notes 51–54). 10. For the relation between the Greek mysterion and sacramentum since about 200 AD and their synonymous meaning in the fourth and fifth centuries, see Smulders (1966 Smulders, P. 1966. “‘De kerk als sacrament van heil’ (‘The church as sacrament of salvation’)”. In De kerk van Vaticanum II: commentaren op de concilie-constitution over de kerk (The Church of the Second Vatican Council: a Commentary on the Constitution on the Church), Edited by: Baraúna, G. 372–95. Bilthoven: Nelissen. [Google Scholar]). 11. The second moral/anthropological phase deals with questions such as the following. What is a human being? What is the meaning of suffering, evil, death – which persist in the face of all progress? What is the point of these victories gained at such a huge price? What can human beings do for society and what can they expect from it? What comes after earthly life? (GS, 10; cf. 12–22). 12. I quote from New Revised Standard version of the Bible (Oxford University Press), which concurs with the rendering of this verse of the psalm in the Dutch version of Gaudium et spes, whereas the original Latin edition renders the Hebrew ‘Elohim’ with ‘angeli’ (‘angels’) (GS, 12). 13. Many other aspects are debatable, especially the peculiar insertion on atheism, which expands three lines in the first draft text to three whole sections in the final document (GS, 19–21) (see Delhaye, 1968 Delhaye, Ph. 1968. “‘De waardigheid van de menselijke persoon’ (‘The dignity of the human person’)”. In De kerk in de wereld van nu: commentaren op de pastorale constitutie ‘Gaudium et spes’ (The Church in Today's World: Comments on the Pastoral Constitution ‘Gaudium et spes’), Edited by: Baraúna, G. 211–34. Bilthoven: Nelissen. [Google Scholar]). It also applies to the connection established between human dignity – in itself an a-religious concept deriving from stoicism – with the Biblical theme of human beings as the image of God. This relation is spelled out in almost ontotheological terms, whereas according to modern exegesis the metaphor is not an ontological definition of human beings but has a functional connotation aimed at maintaining, firstly, a proper relation between God and humankind and, secondly, just relations between human beings (see Van der Ven et al., 2004 Van der Ven, J.A. 2004. Is There a God of Human Rights?, Leiden: Brill. [Google Scholar], pp. 511–50). 14. A special case is the right to migration, which also lacks legitimisation. A precedent may be found in the appeal of Pius XII, predecessor of John XXIII, to take emigration and immigration problems seriously, since human dignity is at issue (Utz and Groner, 1954 Utz, A.F. and Groner, J.F. 1954. Aufbau und Entfaltung des gesellschaftlichen Lebens: Soziale Summe Pius XII, Freiburg: Paulusverlag. [Google Scholar], nos 4023–4026). But Pius XII's appeal does not amount to a right in the sense being referred to in Pacem in terris (PT, 25) and the later apostolic letter by Paul VI Octogesima adveniens (OA, 17). The 1948 Universal Declaration of Human Rights of the United Nations does recognise individuals’ right to leave their countries and return to them (article 13) and the right to asylum in case of political persecution (article 14), but there is no mention of a right to immigration in a general sense. So how does the Second Vatican Council legitimise the right to immigration? Does it offer any legitimisation? Gaudium et spes can be considered a transition from the right of immigration in Pacem in terris to a moral appeal regarding immigration, as it mentions the right of immigration in an aside enclosed between dashes in a section on economic development (GS, 65). John Paul II confines himself to the opinion that immigration should be regulated according to criteria of fairness and balance (Compendium, 297–298). 15. Bernardi (2007 Bernardi, B. 2007. Le principe d'obligation: sur une aporie de la modernité politique, Paris: Vrin. [Google Scholar], passim) distinguishes four generations, slotting Barbeyrac in between Pufendorf and Burlamaqui as representing a separate generation. 16. Asad (2003 Asad, T. 2003. Formations of the Secular, Stanford: Stanford University Press. [Crossref] , [Google Scholar], pp. 130–35) associates passive rights with obligation, dependence and reprimanding individuals when they shirk an obligation, and active rights with the sovereignty of individuals, who claim these rights from the sovereign state, thus establishing a legal concept of the person. The paradox here is that the sovereign state has the task of protecting sovereign individuals from violation of their rights by the state itself. To some extent this paradox can be resolved by separating the state's three powers. 17. In note 140 of this encyclical Benedict refers both to his address to the participants in the International Congress on Natural Law (12 February 2007) and to his address to the members of the International Theological Commission (5 October 2007). 18. At the end of 2008 Benedict issued a warning, citing natural law as a fruit of the divine order of creation, against the attempt to undermine the marriage of men and women, in which he condemned same-sex marriage (Benedict XVI, 2008b Benedict XVI (2008b) ‘Veni Creator Spiritus’, for an Ecology of Man (address to the Roman curia, 22 December 2008) http://chiesa.espresso.repubblica.it/articolo/213106?eng=y) (http://chiesa.espresso.repubblica.it/articolo/213106?eng=y)) (Accessed: 25 January 2013). [Google Scholar]). In 2009, in terms of the same natural law doctrine, he condemned the use of condoms as a measure against the spread of AIDS in Africa, which triggered widespread criticism, especially from the Global Fund to Fight AIDS in Geneva, the European Commission, and the ministers of foreign affairs of Germany, Belgium, France, the Netherlands, Italy and Spain (Benediktus XVI).
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